United States v. Brooke

Decision Date21 November 1910
Citation184 F. 341
CourtU.S. District Court — Southern District of New York

Curie Smith & Maxwell, for the motion.

Henry A. Wise, U.S. Atty. (Wm. L. Wemple and Carl E. Whitney, of counsel).

HAZEL District Judge.

The attachment granted herein must be vacated on the ground that jurisdiction has not been obtained over the person of the defendants. According to the moving papers, the defendants are residents of Huddersfield, England, and are not residents of the state of New York, and cannot after due diligence be found therein or within the United States. The return of the marshal certifies that he is unable to find the defendants or either of them within the Southern district of New York.

The authorities uniformly hold that to merely find property of a defendant in the district does not mean finding the defendant therein, for the purpose of bringing suit against him. By section 914 of the statutes of the United States (U.S. Comp St. 1901, p. 684) it is provided that the practice and mode of procedure in federal cases, other than equity and admiralty cases, conform to those of the respective states wherein such actions are brought, and by section 915 the same remedies by attachment are authorized in this court as are provided by the laws of the state in which the court is held. But such provisions do not expressly or impliedly give a United States District Court jurisdiction of proceedings in rem against the property of a nonresident defendant who has not been personally served. The Supreme Court has held that the attachment is only an incident of the suit. Ex parte Railway Company, 103 U.S. 794, 26 L.Ed. 461; Laborde v Ubarri, 214 U.S. 173, 29 Sup.Ct. 552, 53 L.Ed. 955. And common-law actions can only be brought in the United States Circuit and District Courts in the district of which the defendant is an inhabitant or in which he is found at the time of serving the process, or, to give the court jurisdiction, he must voluntarily appear. Toland v Sprague, 12 Pet. 300, 9 L.Ed. 1093; Anderson v. Shaffer, 10 F. 266; Erstein v. Rothschild, 22 F. 61; Lovejoy v. Hartford Ins. Co. (C.C.) 11 F. 63; Boston Electric Co. v. Elec. Gas Ltg. Co. (C.C.) 23 F. 838; Noyes v. Canada (C.C.) 30 F. 665; Harland v. United Lines Tel. Co., 40 F. 308, 6 L.R.A. 252. Several of the cases cited squarely hold that remedies by attachment do not give United States courts jurisdiction unless such...

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6 cases
  • Allen v. Clark, 8158Y.
    • United States
    • U.S. District Court — Southern District of California
    • March 29, 1938
    ...1913, 229 U.S. 31, 33 S.Ct. 694, 57 L.Ed. 1053; Ex parte Des Moines & M. Ry. Co., 1880, 103 U.S. 794, 24 L.Ed. 461; United States v. Brooke, D.C.N.Y., 1910, 184 F. 341; In re Stark, D.C.N.Y., 1929, 36 F.2d 280; McMurray v. Chase National Bank, D.C.Wyo. 1935, 10 F.Supp. 960; Harland v. Unite......
  • The State ex rel. St. Louis, Brownsville & Mexico Railway Company v. Taylor
    • United States
    • Missouri Supreme Court
    • April 28, 1923
    ...v. Ubarri, 214 U.S. 174; Ex parte Railway Co., 103 U.S. 796; Levy v. Fitzpatrick, 15 Pet. 171; Toland v. Sprague, 12 Pet. 329; United States v. Brooke, 184 F. 341; Harland v. Tel. Co., 40 F. 310; Dormitzer v. Bridge Co., 6 F. 218. (6) Whatever relates merely to the remedy and constitutes pa......
  • Davis v. Ensign-Bickford Co.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • January 11, 1944
    ...45 S.Ct. 47, 69 L.Ed. 247, 42 A.L.R. 1232; Arkansas Anthracite Coal & Land Co. v. Stokes, 8 Cir., 2 F.2d 511, 512, 513; United States v. Brooke, D.C.N.Y., 184 F. 341, 342; In re Stark, D.C.N.Y., 36 F.2d 280; Simkins, Federal Practice, 3d ed. 1938, § 763, p. 547; 4 Am.Juris., Attachment and ......
  • Smith v. Reed
    • United States
    • U.S. District Court — Northern District of Ohio
    • September 16, 1912
    ...210 F. 968 SMITH v. REED et al. No. 8243.United States District Court, N.D. Ohio, Eastern Division.September 16, 1912 [210 F. 969] ... In a ... very recent case, that of United States v. Brooke ... (D.C.) 184 F. 341, which was a suit for the United ... States against two parties, arising ... ...
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